Is legal aid available to apply for a child arrangements order or a special guardianship order? What is involved in applying for one of these orders?

Legal aid is the use of government money to pay for people to receive legal advice and representation. The Legal Aid Agency (LAA) is the public body which provides legal aid.

Someone may be able to get legal aid to apply for one of these orders if:

• They are applying for the order because the child is at risk in their parent’s care and
• That parent is the respondent to the application. Respondent means the other party involved in the case.

The person applying for legal aid will need to show the child is at risk of harm in this way. There are strict forms of evidence which are required to prove this. This evidence is often referred to as gateway evidence. The evidence will have to be shown to the Legal Aid Agency (LAA).

Means and merits tests

Even if the person applying for legal aid can provide the right gateway evidence, they will only get legal if they can meet two tests:

1. A means test

This involves looking at their financial situation. Their income and savings must be below a set level to qualify for legal aid. A solicitor will need to do a financial assessment. This will involve looking at the person’s bank statements for the last three months

2. A merits test

This means the person wanting legal aid will have to demonstrate that they have a good case. To work out if they do, a solicitor must look at whether the person is likely to be successful in getting what they want in the case. To do this the solicitor has to ask themselves this question – ‘Would a reasonable person would use their own money to pay for the case?’ If they think the answer is yes, then the merits test will be met.

A specialist children law solicitor will be able give advice about whether someone is eligible for legal aid.

Where there are care proceedings

Someone wishing to apply for a child arrangements order or special guardianship order may also be able to get legal aid:

• If children’s services have applied to court for a care order, and the kinship carer is seeking the order as an alternative to the care order, or
• Where care proceedings have started, and they are applying to be joined as a party to those proceedings.

But the means and merits tests will still apply (see above).

Finding a solicitor

To find a solicitor, search using the ‘how to find a solicitor’ function on the Law Society website.  Look for someone who is a child law specialist. Or who has Children Law Accreditation. For information about working with a solicitor, please see our top tips guide Working with a solicitor.

Applying for a child arrangements order or special guardianship order

We have advice sheets looking at how wider family members and friends can apply for a child arrangements order and a special guardianship order. We call these our ‘DIY guides’. Step by step, they explain the legal and practical process to apply for an order. It includes information about legal aid. And includes information which to help anyone who has not been able to get legal aid or solicitor to help them:

• 2c) DIY special guardianship orders: care proceedings
• 2d) DIY special guardianship orders: private law proceedings
• 2f) DIY Child arrangements orders: information for kinship carers.

These are all available on our Advice sheets page.